Wednesday, December 05, 2007

Signing off virtual schools

I have just gotten around to reading the Court of Appeals decision in the virtual school case, Johnson, et al. v. Burmaster, et al. I did, however, get an earful about it from a lawyer for some of the parents over lunch today.

Much of the public discussion around this case has revolved, or will revolve, around whether it is good policy to provide parents with this type of educational option. Apparently the kids at the Wisconsin Virtual Academy do fairly well and there seems to be little doubt that WEAC's opposition to it involves more than a little self interest.

But these weren't the issues before the Court. It was charged with deciding whether state law permits these schools, and not whether or not they are a good idea.

There were three issues. The first two had to do with where the school was located and where the children attend. State law requires that the answer to both questions be the district that chartered the school, Northern Ozaukee. The school's administrative offices are located there but its teachers work from home around the state and the students, who do their work at home, also live in various locations. The Court of Appeals held that the district is, literally, located wherever its teachers live and that its students attend at wherever their home happens to be. You can read the statute that way, but that reading is by no means compelled. It seems just as plausible to say that the school is located, and children attend, at the location where the administrative offices are located.

A more difficult issue was presented by state law requiring that any person teaching in a public school be a licensed teacher. Although certified teachers do supervise and monitor and participate in instruction, I think some of the public commentary that I have heard overstates their role. Most of the work is done by students in association with their parents.

Does that constitute "teaching" in a public school? I can imagine a court concluding that there is some point at which so much responsibility is left to parents that they have essentially come to fill the role of a teacher and, while they can do this if they are home schooling, they cannot do it if their child is enrolled in a public school.

But that's not what the court did. It referred to the definition of teaching adopted by DPI in the state administrative code. Teaching, according to DPI, is "improving learning by planning instruction, diagnosing learning needs, prescribing content delivery through classroom activities, assessing student learning, reporting outcomes to administrators and parents,and evaluating the effects of instruction."

My initial reaction to this is that it is an odd definition. Teaching does include all of these things but the definition seems to leave out the one thing that parents in the virtual school seem to have the primary responsibility for and that is implementing the instructional program that has been planned and prescribed by certified teachers and that is assessed and evaluated by certified teachers.

But putting that aside, what is stranger is that the Court of Appeals seems to think that the statute is violated by the mere fact that parents engage in activities that can be called teaching without regard to whether those activities are undertaken under the direction of, or in support of the efforts of, certified teachers and without regard to how much teaching is delivered by parents and how much is delivered by certified teachers.

On the court's analysis, any school with robust parental involvement and assistance in delivering instruction would be in violation of the statute. The court recognized this potential, but said that if the statute is capable of such a construction the legislature should fix it.

For those of you who have or will read the opinion, I know that the court cites a paper I wrote in support of the proposition that courts shouldn't rush in to solve problems that the legislature had ignored, but, while I am happy that they accept the principle (and flattered that they would read my work), it is not clear that they applied the principle correctly. The fact that their reading of the statute might warrant a conclusion that "all public schools violate the statute" does not mean that they should "fix" the statute. It suggests that their reading is wrong.

It seems to me that they ought to have concluded that a parent assisting his or her child is not a teacher or that the statute forbids, not all teaching by parents, but the usurpation of the teacher's function by the parents. That would require the articulation of some standard for determining whether there has been usurpation and the application of it to the particular facts of this case. That didn't happen.

Had it happened, the court may still have concluded that there was still too little teacher and too much parent for a public school. But, in making that determination, it would have had to explain when parental involvement becomes teaching and that would have given WIVA an opportunity to restructure its program and continue in operation, rather than simply shutting it down and leaving its students outside the virtual classroom door.

Update: Lawyer blogger Mike Plaisted says that criticism of the breadth of the court's analysis is "typically nuts" noting that the court disavows any suggestion that it is illegal for parents to help their kids with their homework. He's not responding to me and I never said that, but it underscores the problem with the way in which the court did this: Why isn't it illegal given the way in which they conclude that the parents here are "teachers?"

The court suggests that the problem is that they are not permitted to do help, but are required to help in order for the school to operate. They don't mean that. It can't be unlawful for a public school to demand parental involvement in tasks that might come within their broad definition of teaching.

I am sure that what they wanted to say that WIVA places too much responsibility on the parents and that there is a point at which a parent can be doing so much that he or she becomes the teacher. I can buy that, but how are we to decide that however much responsibility the parents exercise here is too much? Is it a function of face time? Does it depend upon who makes what decisions? After all, all of the things that are set forth in the admin code's definition of teaching seem to have been controlled by licensed teachers.

In any event, if they really meant to say that the mere exercise of teaching functions by parents is not illegal but, in this case, the parents were asked to do too much, it would have been helpful to articulate a standard and, probably, would have required remanding the case back to the trial court because there were apparently factual disputes over how much parents are involved and how little teachers are involved.

That would not have resulted in the precipitous closing of the school.

It also may have given WIVA a chance to change what they do to come into compliance with whatever the standard happens to be.

That would not have resulted in the precipitous closing of the school.

46 comments:

James Wigderson said...

According to the DPI definition, if my wife volunteers to assist with teaching reading at the school, she's in violation of state law.

karl marx said...

Rick, I appreciate your "lawyerly" approach to this issue,and I certainly respect your "Roscommon, or Redess" take on this issue, but.............
You are a LAWYER, and as such, you see, common sense issues, from a "lawyers perspective".
Not good. Not good indeed.
This issue isn't about law nor court determination as to "constitutionality". It's about Liberal ideology and the ability to forward said ideology.

Dad29 said...

The "in loco parentis" question emanates from the penumbra of the statute.

Not real surprising; Dewey's postulates were designed to lean toward a Platonic version of school (State is All) rather than the one espoused by Natural Law, where the parents are the primary teachers and the schools are merely delegates.

The statute is, thus, schizophrenic, having been produced in a bipartisan fashion.

Amy said...

What affect will this have on homeschooling?

John Foust said...

Another possible future permutation is that there will be a demand for brick-and-mortar virtual schools.

Some students may not be able to get the high-speed Internet access and computer power necessary for present and future virtual schools. Many rural students don't have a chance at high-speed, for example. So why wouldn't there be a demand for a central building in a community with great Internet connectivity, suitable computers and accessories, and minimal supervision? Or a demand for higher-quality connectivity than the average person can afford, such as business-class video conferencing or immersive virtual realities? Or just a demand for a place to send your kids for schooling while you're at work, if you can't stay home?

The students there might be attending a dozen different virtual schools, yet they're in one building. Could be private, could be public. Where is this school located?

Anonymous said...

Amy asks "What affect will this have on homeschooling?"

Anonymous asks: "What EFFECT will Amy's poor grammar have on her home-schooled children?"

Rick Esenberg said...

Amy

None.

Anonymous said...

Rick -

District 2, isn't that a conservative court?

jp said...

“This issue isn't about law nor court determination as to "constitutionality". It's about Liberal ideology and the ability to forward said ideology.”

karl;
You have identified the underlying issue.
In addition, parental rights and taxpayer’s return (kids who can read and write) be damned.

Amy said...

Anonymous asks: "What EFFECT will Amy's poor grammar have on her home-schooled children?"

Where did I say I definitely planned to homeschool? It's an option I'd like, but probably not feesible for us. However, I do defend the right of those who can homeschool to do so.

I'm betting you'd find some licensed WEAC teachers with worse grammar skills than mine.

I find it appalling that WEAC question the "moral character" of parents who want to be involved with their children's education. A look at most MPS schools and students shows what a LACK of parental involvement can bring. Can we question that moral character?

Dave said...

Anonymous:

Anonymous asks: "What EFFECT will Amy's poor grammar have on her home-schooled children?"

Answer: None. Amy is a good grammatician. She was writing on the fly. I'm her husband. I know.

It would also behoove you to identify yourself before you throw out such barbs.

Anonymous said...

Amy, this decision is not the end of home schooling; parents still have that right, and it doesn't need defending.

This is about public funding of it, in the specific manner that North Ozaukee did it. For every law, there is a loophole; the district just has to figure out a way to do this within the law.

But even if it doesn't, parents still be homeschooling here. Wisconsin actually has some of the most wide-open homeschooling laws and the least restriction of any state.

eclipse said...

karl marx & JP state that " the real issue here is Liberal ideology and the ability to forward said ideology.”

I am a far left liberal whose kids have attended local public schools and virtual schools (Monroe Virtual HS & Appleton's Connections Academy), and I've also homeschooled. All of these education options have essential places in our society and, until yesterday, I counted my blessings that I was lucky enough to live in a state that supported them all. I too am outraged by the appeals court's decision. Please don't distort or subvert the real issues here by trotting out some kind of liberal bogeyman or by assuming that all liberals agree with the teachers' union. Nothing could be more wrong--and wrongheaded.

karl marx said...

Eclipse, no offense intended, but this does come down to liberal ideology. WEAC is liberal WEAC filed suit to protect itself and to keep a monopoly on public education. Only liberals support this. You may be a liberal and not support this outrage, but this is about liberalism. Be careful, if your liberal friends find you disagree with them, they might Joe Lieberman you.

Anonymous said...

The problem the court found with the certification issue is that the operation of the school DEPENDS on instruction being delivered by non-certified teachers. The court found that this goes beyond "parent involvement."

Also, although the court didn't this, the design of the school actually closes the online opportunity for a parent who wishes to be "involved" in their child's education, but does not wish to be the primary teacher.

It seems possible that WIVA might be able to fix the certification issue by requiring more direct interaction between the child and the teacher and clarifying teacher and parent roles.

However, you're ignoring the rest of the decision, which is far more global and far more damaging to the continued operation of the school. That is, that the virtual school violates charter school laws because it is partly located outside the school district. The court finds that even if the administration is located within the school district, the school is at least partly located outside the school district if the teachers and students are located outside the school district.

WIVA and several other online schools enroll very few children from within their districts. They are dependent on open enrollment for their existence. But if the students must be located within the district, then the school cannot afford to operate, even if it solves the certification issue.

I'm surprised that Rick has ignored this aspect of the decision and I'm surprised at his reaction to the decision. It was based on the plain language in the law. It was as strictly-constructionist as you can get.

The legislature can fix this, if they want to.

Mike Plaisted said...

Rick:

I didn't say "criticism of the breadth of the court's analysis is 'typically nuts'" -- I said: "Both the MSR hosts and the company flacks said that the decision means that parents of a regular school student helping with homework is now in violation of the law, which is typically nuts..." In other words, as they usually do, the right-wing, faced with uncomfortable facts and results, distorts and exagerates, creating straw-men that don't exist. That's what's "typical" and is also unfortunate that you continue to provide cover for Sykes and others with disingenuous legal nonsense.

Anony 9:52 would like to hear your reaction to the other point by the court -- that the "school" is not located in the district. Let's put it this way: if North Oz created a charter school where the administrators were in the district and the teachers and students reported every day to a building in Milwaukee, do you think that would be in compliance with the statute?

And here's another question, Rick. Do you think we should spend public money to support home-schooling? Because that is all that is going on here. If that's what you want, don't you think that should be accomplished by honest debate, as opposed to sneaky schemes?

Anonymous said...

The "place" of the school in this case is the server that everyone logs into. Maybe it is in California for all we know. I suppose the law needs to change since technology has made such change for us.

The idea that students of a charter school need to live in district is crazy. Charters were meant to be magnet schools that attract new students from far and wide for a new approach to learning or environment. Charters always depend on open enrollment.

Anonymous said...

On the criticism of Amy...I had my kids in public school for a few years. A turning point for me was when a certified teacher (let's all be on bended knee) wrote in a dialogue journal, "Thank you for borrowing me your pen yesterday." At that point I knew I was getting my kids out of that system.

karl marx said...

What a surprise!! Mike Plaisted is against children and for the UNION.

Anonymous said...

Response to Mike Plaisted. The court said "located" means "located" and includes the location of students and teachers. So how could a school where the teachers and students are "located" in Milwaukee be "located" in N. Ozaukee?

While the lawsuit was filed by WEAC and certainly represents its interests, the court's decision was based on the plain language in the law. The court specifically rejected creative definitions of "located."

The legislature can fix this, if they wish.

Rick Esenberg said...

The problem, Mike, is that it can't be that mandating significant parental involement in the educational process makes that parent a "teacher" within the meaning of the statute. Yet that's what we come away with. The court says - well, of course they can help with homework. Why isn't clear but legal analysis has to be applied with common sense so let's accept that.

But what of something more robust and strenuous than that? How much parental involvement is too much. Is Wiggy right? Is it illegal for his wife to assist at school?

The lack of a standard matters here for two reasons. First, there were apparently factual disputes over the extent of parental involvent. If so, then you, if you remember civil procedure (I know you do criminal law now), know that summary judment may have been inappropriate.

Second, when public bodies fall outside the law, we usually enjoin that which is illegal. We don't just shut them down. Articulating a standard (something DPI has refused to do) might permit WIVA to modify its approach to come into compliance.

Dad29 said...

but this does come down to liberal ideology

Karl, a quibble.

This is a dispute over power. The fact that WEAC is a Lefty bunch is accidental.

Mike Plaisted said...

Yeah, Karl, I'm "against the children". Brilliant analysis. Keep up the good work.

Rick, I also heard Sykes read an e-mail from the lawyer for WIVA/K12 (pro bono, says Sykes. doubt it) this morning, reciting this "let us fix it" stuff. They can't fix it. There is no way WIVA can reconstitute itself as "located" within the district when the students and teachers are not. (You never answered by questions, by the way, about North Oz setting up adminstrators in the district and sending the teachers and students to a building in Milwaukee -- what's the difference?) Also, given the nature of the programing and the primary day-to-day instructor necessarily being the parents (not that hard to draw those lines, and your idea that help with homework is against the law is ridiculous), what is there to "fix".

The K12/WIVA scheme is simply and solely support for home-schooling. It can't squeeze itself into the way the law now stands, and the court was right to recognize that.

Anonymous said...

So which is it WEAC? Do you want parents involved or not? Now you have bill out there to help parents be more involved with schooling.

http://www.weac.org/news/2007-08/dec07/fmla.htm

Make up your mind hypocrites.

Heidi Lynn said...

You can't make this stuff up! The day after the courts ruled that virtual schools were bad because of too much parental involvement, WEAC puts up on their website legislation that is being worked on to get parents more involved in their children's schools.

http://www.weac.org/news/2007-08/dec07/fmla.htm

Hearing held on bill to increase parental involvement in schools

Parental involvement helps children succeed in school, Wisconsin’s Teacher of the Year said Thursday (December 6, 2007) while testifying at a Senate Education Committee public hearing in favor of a bill to modify the Wisconsin Family and Medical Leave Act to include school conferences and activities.

Beth Oswald, 2008 Wisconsin Teacher of the Year, speaks in favor of Senate Bill 195 at a Senate Education Committee hearing.

Senate Bill 195 allows parents to take up to 16 hours of leave time from work to participate in children’s school activities and conferences that cannot be scheduled during non-working hours.

“I can really, truly say the more you develop a face-to-face relationship with a parent, the more likely that parent is to feel comfortable initiating contact again with you,” Beth Oswald told the Senate Education Committee. Oswald, a 7th-grade world history teacher at J. C. McKenna Middle School in Evansville for 11 years, is a recipient of the Kohl Fellowship, 2008 Wisconsin Middle School Teacher of the Year, and the state’s representative for National Teacher of the Year.

“These parents are also much more likely to respond in a positive manner when contacted regarding any concerns staff may have about their child, as they now see teachers as partners, rather than adversaries,” she continued. “Additionally, once parent-teacher relationships are formed through contact at open houses and conferences, parents tend to feel more comfortable attending school-day activities.”

Research and common sense proves that when parents are involved, their children are more likely to achieve higher grades and test scores, develop better attitudes and behavior, attend school more regularly, complete more homework, graduate from high school and enroll in postsecondary education.

“Senate Bill 195 would help these relationships occur, by giving employees the right to attend such valuable and vital school conferences and activities,” Oswald testified. “And while we cannot mandate that parents attend their children’s conferences and meetings, this bill would go a long way toward making it easier for parents who wish they could attend to actually do so.”

Rep. Spencer Black, left, discusses the importance of parental involvement in schools at a Senate Education Committee hearing. Looking on is Sen. Tim Carpenter, author of SB 195.

Sen. Tim Carpenter of Milwaukee, author of SB 195, and Rep. Spencer Black of Madison, author of the companion bill, Assembly Bill 395, also testified during the hearing.

“The parents least likely to get this flexibility… are very often parents of children who would most benefit from this interaction,” Black told the committee. “I know it as a parent and a former teacher. I can tell you as a teacher, it makes all the difference.”

Parents who work in low-wage jobs or in tough conditions often have the most difficulty getting approval for time off to participate in their children’s education, he said. “This has a minimum impact on employers but makes an important impact on children,” he added.

Sen. Luther Olsen, a member of the Education Committee, asked why a change was necessary. He said he was not aware of anyone who was unable to get off of work for those purposes using paid time off or vacation.

“It does happen,” Black responded, stressing that the measure does not require employers to compensate employees for the leave time. “Probably half of the people can’t imagine why this is needed. But a very significant number of people in the state don’t have the ability to take paid time off or vacation. Not every job comes with vacation or paid time off.”

Sen. Jon Erpenbach, a member of the committee, agreed. “This levels the playing field economically,” he said. “It’s a matter of economic justice for all.”

Oswald noted that she worked for a grocery store before becoming a teacher and received just two personal days a year, which were subject to approval by a supervisor. “If that time was denied to you, you really had little recourse,” she said.

She said teachers try to meet outside the school day and otherwise accommodate parents, but for events such as conferences when many teachers are involved or lengthy individual education plan meetings, it would be impossible to gather all the participants outside of the regular schedule. She said that partnership is essential to helping all students reach their full potential.

According to the Education Commission of the States, at least 15 states encourage, urge, expect or direct employers to enable parents to attend school activities such as parent/teacher conferences: Alabama, California, Colorado, Hawaii, Illinois, Louisiana, Minnesota, North Carolina, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah and West Virginia.

Other items taken up by the Senate Education Committee included:

A hearing on Senate Bill 108, requiring instruction in public schools on the history of organized labor in America and the collective bargaining process.

Appointments of the following individuals to the Professional Standards Council for Teachers:

* Stephanie Armstrong of DeForest
* Lisa Benz of River Falls
* Ann Cattau of Neenah
* John Gaier of Neillsville
* Paula Hase of Wausau
* Jamie Lynn Oliver of Ettrick

Posted December 6, 2007

Anonymous said...

Involved, yes, we all want that of parents.

Primary teachers? No. If I walked in to my kid's school and found the teacher only there less than an hour a week -- the amount of interaction per student, according to the case -- and replaced by some parent or other, I'd be concerned. No matter how many degrees the parent has in other fields or how great a parent he is.

If the parent is a previously certified teacher, preferably with experience and keeping up with curricular changes -- and the current standards -- then the legislation ought to recognize those parents' training and abilities.

I wouldn't want my car worked on by a parent supervised at a distance for an hour a week by a trained mechanic, either. Not when I'm paying for it. Parents who homeschool and want to pay for it actually have that freedom in this state -- unlike many.

Be careful about what you're asking for here. The question here is homeschooling for which the public pays. Then the public, through the courts, gets to get into your home -- through your homeschooling. . . .

billie said...

Anon - Your analogies are flawed in several ways. First, it's not just "some parent," it's you. This isn't a case of random parents teaching other people's kids.

Second, to use the car repair analogy, if a licensed qualified mechanic provided detailed instructions to use this wrench to loosen that screw or attach that hose, I'm pretty confident those basic tasks could be handled by a reasonably educated person. For the more technical tasks, those would require more involvement. If the "parent" in this analogy was not up to the task, it would become apparent pretty quickly that this arrangement was not working. The car will start failing. The parent, wanting the best for the child... er... car, will take it to a traditional shop.

Third, this is a voluntary program. No one is forced to attend school like this. If traditional schools are more suitable to you, knock yourself out. Im fairly certain those will always be an option.

What we're asking for here is a better way. Virtual schools are an innovative new way to educate kids that is achieving outstanding results. Is it perfect? Perhaps not. But maybe it will lead to another new concept that will be even better. Things improve in increments. If you don't allow the first step, then innovation doesn't happen.

"If nothing changes, then nothing changes."

Rick Esenberg said...

Rick, I also heard Sykes read an e-mail from the lawyer for WIVA/K12 (pro bono, says Sykes. doubt it) this morning, reciting this "let us fix it" stuff.

Actually, Mike Dean represents a group of parents. And if you doubt that he took the case pro bono, I happen to know that you would be wrong. Mike has taken this case - and many others - without pay (or at a greatly reduced fee) at great financial sacrifice to his family. I am fully aware that there are lawyers on the left who do this, but so does he. Both are trying to live out the best aspirations of our profession.

Mike Plaisted said...

What, K12 and the Bradley Foundation can't cough up the money for a lawyer to try to protect their scheme? Cheap bastards. They must really have their money locked in no matter what happens, as I suspected.

jp said...

dad29;

but this does come down to liberal ideology

It’s cynical to believe power is the underlying motivation.
Advancement of liberal ideology is a stated goal of the education establishment.

Dad29 said...

JP, well yah, sorta.

In the end, the Leftist State will have unfettered power and control over all its citizens. So the ideology is about control (power.)

That's why I characterized it as a "power" issue.

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